Karnataka High Court
District Surgeon vs The Labour Officer & Minimum on 15 September, 2018
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION No.34411 OF 2011 (L-MW)
C/W
WRIT PETITION No.34412 OF 2011 (L-MW),
WRIT PETITION No.29754 OF 2011 (L-MW)
In W.Ps No.34411/2011 C/W 34412/2011
BETWEEN:
DISTRICT SURGEON
DISTRICT GOVERNMENT HOSPITAL,
MANDYA DISTRICT,
MANDYA
...COMMON PETITIONER
(BY SRI.N SRINIVAS, ADV. (NOC) )
AND:
1. THE LABOUR OFFICER & MINIMUM
WAGES AUTHORITY,
SUB DIVISION II MANDYA
2. THE LABOUR INSPECTOR,
II CIRCLE,
MANDYA
3. M/S. NAGALOKA ENTERPRISES,
BY ITS PROPRIETOR B S LOKESHWARA,
S/O SIDDAYYA,
NEAR ASHOKA CONVENT
2
5TH CROSS, UDAYAGIRI
MANDYA
4. THE DIRECTOR
HEALTH & FAMILY WELFARE DEPARTMENT,
ANANDA RAO CIRCLE ,
BANGALORE - 09
5. THE DIRECTOR FOR MEDICAL EDUCATION,
ANANADA RAO CIRCLE,
BANGALORE
(R4 & R5 IMPLEADED VIDE C/O DTD:24.11.2014)
...COMMON RESPONDENTS
(BY SRI.V.S.NAIK, ADV. FOR R3;
SRI.LAKSHMINARAYAN, AGA FOR R4 & R5;
R1 & R2 ARE SERVED)
WRIT PETITION NO.34411/2011 IS FILED UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 18.01.2008 PASSED BY THE LABOUR OFFICER
AND PRESCRIBED AUTHORITY UNDER THE MINIMUM WAGES
ACT, MANDYA IN CASE NO.MWA/CR:45/2003 MARKED AS
ANNEXURE-E.
WRIT PETITION NO.34412/2011 IS FILED UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 18.01.2008 PASSED BY THE LABOUR OFFICER
AND PRESCRIBED AUTHORITY UNDER THE MINIMUM WAGES
ACT, MANDYA IN CASE NO.MWA/CR:2/2005 MARKED AS
ANNEXURE-E.
IN W.P. No.29754 OF 2011 (L-MW)
BETWEEN:
DISTRICT SURGEON
3
DISTRICT GOVERNMENT HOSPITAL,
MANDYA DISTRICT,
MANDYA
...PETITIONER
(BY SRI.N SRINIVAS, ADV. (NOC))
AND
1. THE LABOUR INSPECTOR,
II CIRCLE,
MANDYA
2. M/S. NAGALOKA ENTERPRISES,
BY ITS PROPRIETOR B S LOKESHWARA,
S/O SIDDAYYA, NEAR ASHOKA CONVENT
5TH CROSS, UDAYAGIRI
MANDYA
3. THE DIRECTOR
HEALTH & FAMILY WELFARE DEPARTMENT,
ANANDA RAO CIRCLE ,
BANGALORE - 09
4. THE DIRECTOR FOR MEDICAL EDUCATION,
ANANADA RAO CIRCLE,
BANGALORE
(R3 & R4 IMPLEADED VIDE C/O DTD:24.11.20114)
... RESPONDENTS
(BY SRI.LAKSHMINARAYAN, AGA FOR R1,R3 & R4;
SRI.V.S.NAIK, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DT 18.01.2008 PASSED BY THE LABOUR OFFICER AND
4
PRESCRIBED AUTHORITY UNDER THE MINIMUM WAGES ACT
MANDYA VIDE ANNEX-E.
THESE WRIT PETITIONS COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Labour Inspector, Sub Division-2, Mandya instituted a case under Section 20 of the Minimum Wages Act, 1948 (for short hereinafter referred to as 'the Act') before the competent authority and made a prayer to pay the minimum wages to the employees engaged by the third respondent for the benefit of the petitioner. The case of the Labour Inspector was registered in No.KAVEKAA/CR:45/2003 and order has been passed on 18th January 2008 directing the petitioner to pay an amount of Rs.1,40,710/- within thirty days from the date of the order. In the connected Writ Petitions No.34412 of 2011 and 29754 of 2011 also, a direction was issued to pay Rs.1,66,626/- and Rs.1,21,479/- respectively. Against the same, these petitions are filed by the District Surgeon, Government Hospital, Mandya.
2. After registering the case, notice was issued to the petitioner which has not been properly represented by the 5 petitioner except filing vakalath in one case and statement of objections not filed even in the said case. After considering the case of the respective parties, the competent authority passed an award directing the petitioner to pay such amount.
3. The learned counsel appearing for the petitioner submits that the petitioner entered into a contractual agreement with the third respondent and discharged his liability from paying the amount to the third respondent. When the agreed amount has been paid to the third respondent, it was his duty to pay the minimum wages to employees engaged by him. Any failure in not paying the amount, the Labour Inspector should have prosecuted the third respondent, instead, he has instituted the case against the petitioner though petitioner is not statutorily or contractually liable to pay. Hence, he submits that the order passed by the Authority under the Minimum Wages Act is to be set aside.
4. The learned counsel for the third respondent submits that with regard to payment of minimum wages to the employees, it is the petitioner who has to pay as per the 6 agreement entered into between the petitioner and the third respondent. Hence, the direction issued to pay the said amount is justifiable under the provisions of Contract Labour Regulations Act and also under the provisions of Minimum Wages Act.
5. The learned Government Advocate submits that though notice was issued to the petitioner, he has not taken any steps to put-forth his case before the Authority, and under the circumstances, he submits that since the petitioner has not utilised the opportunity, it is not open for him to file this petition.
6. Heard the learned counsel for the parties and the learned government advocate. Notice was issued duly to the petitioner and the petitioner did not make use of the said opportunity. Under the circumstance, the authority has passed the said order. While passing such order, the authority has also relied upon the judgment of the Hon'ble Supreme Court in the case of THE SECRETARY, HARYANA STATE ELECTRICITY BOARD v. SURESH AND OTHERS reported in (1999)3 SCC 601 and as per the said judgment, it is the duty of the principal employer to pay the minimum wages, in case, if the Contractor fails to pay. 7 Similarly, under Section 21(4) of the Contract Labour Regulation and Abolition Act, 1970 similar provisions is found, viz. that it is the principal employer who has to pay the wages, in case, if the Contractor fails to pay. Thereafter, liberty is reserved to the principal employer to recover the same from the contractor. When such being the case, it is needless to mention that it is the petitioner who has to pay. On the other ground to the effect that the petitioner has not contested the matter, petitioner has to pay the wages. For this, no reasons have been assigned since he has filed only vakalath.
7. The petitioner is the District Government Hospital, Mandya. It is the sovereign duty of the State to provide medical facilities to its citizens. It is the prime duty of the State, which is a model employer for the present purpose. It is undisputedly, the employees of the third respondent who have served for the District Government Hospital, Mandya and the petitioner is the beneficiary. No matter whether the third respondent pay the minimum wages to the employees or not, it is the bounden duty of the first respondent to pay the said amount. In case, if it is 8 so advisable, it is for the petitioner to recover the same from the third respondent as per Section 21(4) of the Contract Labour Regulations Act and hence, I do not find any error in the order passed by the competent authority under the Minimum Wages Act.
8. When an order is passed by the Tribunal or the Court below, it is not automatic for this Court to struck off or exercise power under Article 227 of the Constitution of India. It is not decision alone to interfere in the matter. In case if it is found that there is an error in the decision making process by the Court below, then only this Court could interfere. The error in decision making process, that too, comes only when mis- interpretation of a provision or non consideration of statutory or constitutional provisions, then it is an error, then only it is for this Court to interfere.
9. Wherever error has been committed, it is permissible for this Court to interfere. In this regard, it is necessary to observe here that this Court in the case of STATE OF ANDHRA PRADESH v. P.V. HANUMANTHA RAO (D) THROUGH LEGAL 9 REPRESENTATIVES reported in (2003)10 SCC 121. In the course of the judgment, it is observed thus:
"True it is that remedy of writ petition available in the High Court is not against the 'decision' of the subordinate court, tribunal or authority but it is against the 'decision making process'. In the 'decision making process', if the court tribunal or authority deciding the case, has ignored , vital evidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction", the constitutional power of the High Court under Articles 26 and 227 can be invoked to set right such errors and prevent gross injustice to the party complaining."
10. Further, in the case of OUSEPH MATHAI & ORS v. M. ABDUL KHADIR reported in (2002)1 SCC 319 at paragraph 4 of the judgment, it is observed thus:
"It is not denied that the powers conferred upon the High Court under Articles 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt Article 227 confers a right of superintendence over all courts and tribunals throughout the territories in relation to which it 10 exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said Article as a matter of right. In fact power under this Article cast a duty upon the High Court to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this Article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party."
11. In the light of the above referred judgments, I hold that it is not proper for this Court to interfere in the present case. The petitioner is directed to satisfy the awards within a period of three months from today. Accordingly, the petitions stand disposed of.
Sd/-
JUDGE lnn